The Red Dot, November 2018: Shape of Regulatory Action – MLS

In August, the Supreme Court of Canada refused to hear an appeal from the Toronto Real Estate Board (“TREB”), thereby putting an end to a seven-year fight between TREB and the Competition Bureau of Canada.

At issue was a fairly minor detail in the rules of TREB’s MLS that prohibited certain uses of sold and pending data, as well as TREB’s refusal to allow the display of certain kinds of data on Virtual Office Websites.

The immediate impact is, in all likelihood, far more modest than some people have predicted. After all, the very similar 2008 consent decree between National Association of REALTORS and the U.S. Dept. of Justice had a very small impact on the industry. Many in and around the industry are predicting huge changes across Canada, and a coming explosion of innovation and competition. I am far less sanguine about such a prospect.

So why do we care about this?

The answer is that the TREB case provides valuable insight into the regulatory and legislative mindset, especially as it comes to the all-important topic of data. Given the many similarities between US and Canada, I think we can tease out how the fight over data, access to data, usage of data, and the recent concerns by governments everywhere about privacy, is going to play out.

Along the way, we can touch on a number of important topics around competition, technology, and structural issues with organized real estate.

As data becomes more and more important not just to real estate but to our economy as a whole, the war over data is entering a new phase. Who owns it, who controls it, who can see it, and who can use it and for what purpose and how will all be questions with renewed urgency in the coming years. And potentially, the answers will be different this time around.

This report is of particular importance to anyone in leadership in MLS and Associations, but because of how central data and control over data was in this case, brokerage and technology leaders should pay close attention to how regulators and government authorities view data in real estate.

Description

In August, the Supreme Court of Canada refused to hear an appeal from the Toronto Real Estate Board (“TREB”), thereby putting an end to a seven-year fight between TREB and the Competition Bureau of Canada.

At issue was a fairly minor detail in the rules of TREB’s MLS that prohibited certain uses of sold and pending data, as well as TREB’s refusal to allow the display of certain kinds of data on Virtual Office Websites.

The immediate impact is, in all likelihood, far more modest than some people have predicted. After all, the very similar 2008 consent decree between National Association of REALTORS and the U.S. Dept. of Justice had a very small impact on the industry. Many in and around the industry are predicting huge changes across Canada, and a coming explosion of innovation and competition. I am far less sanguine about such a prospect.

So why do we care about this?

The answer is that the TREB case provides valuable insight into the regulatory and legislative mindset, especially as it comes to the all-important topic of data. Given the many similarities between US and Canada, I think we can tease out how the fight over data, access to data, usage of data, and the recent concerns by governments everywhere about privacy, is going to play out.

Along the way, we can touch on a number of important topics around competition, technology, and structural issues with organized real estate.

As data becomes more and more important not just to real estate but to our economy as a whole, the war over data is entering a new phase. Who owns it, who controls it, who can see it, and who can use it and for what purpose and how will all be questions with renewed urgency in the coming years. And potentially, the answers will be different this time around.

This report is of particular importance to anyone in leadership in MLS and Associations, but because of how central data and control over data was in this case, brokerage and technology leaders should pay close attention to how regulators and government authorities view data in real estate.

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